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Tuesday, March 31, 2009

Wheels of justice grind slowly

Without referencing the merits of the case, I still think that, in principle, it is good to see evidence that judges can be held accountable for their actions, even if it takes an amazing five full years from the time the investigation into his alleged misconduct was announced until today's initial finding.

And, by the way, in the Globe's account of this (the first link), I'm pretty sure that, if the judge had been a former Tory MP instead of an ex-Grit cabinet minister, the paper would have clearly noted his political affiliation.

Posted by Terry O'Neill on March 31, 2009 in Current Affairs | Permalink


Without referencing the merits of the case, either, this decision troubles me in principle.

If parliament gets comfortable with the idea of investigating and removing judges, judicial independence will be at risk, and politics, not justice (the rule of man, not the rule of law) will prevail.

We don't want that, Terry.

Posted by: Matthew Johnston | 2009-03-31 3:41:07 PM

Really Matthew? In pre charter Canada, your point would be valid. As it is, we elect politicians to govern and make legislation, but we now have non elected judicial activists making legislation while ignoring the will of the people. That being the case, perhaps it is better to bring the judiciary officially into the political arena.

Posted by: Alain | 2009-03-31 4:59:31 PM

I'm no expert, Alain, but it seems judges "make" law only where politicians fear to tread, and strike down laws only when they conflict with charter rights.

Perhaps we need a better charter, but the solution, in my view, is not majoritarianism at the cost of judicial independence.

I don't trust parliament to constrain itself and protect our ancient liberties.

Posted by: Matthew Johnston | 2009-03-31 5:12:08 PM

Matthew, the charter, Trudeau's gift that keeps giving, is the problem. We had more rights and freedom under the BNA Act and English Common Law.

I agree that one cannot thrust parliament to constrain itself and protect our traditional liberties, but allowing non elected and non accountable judges to legislate is even more dangerous. The Court's role must be returned to interpreting laws, not making them. Instead of judicial independence we now have justice run amok with the people having no recourse.

Posted by: Alain | 2009-03-31 8:07:22 PM


Our "ancient liberties," as you call them, were once best left in the hands of judges rather than Kings and other unelected nobles. Times have changed on both sides of the equation.

On one side, our rulers are now elected, and so are at least in principle capable of being reigned in. Judges, by contrast, are completely unaccountable to anyone, except themselves. You don't like the RCMP investigating themselves over Vancouver airport incidents? Why do you suppose judges would do any better being insulated from all political or public scrutiny? That is naive.

On the other side, judges (and tribunal staff, etc.) have been handed legislative power by the Charter. They are a genuine threat to liberty now.

What we need is a system whereby the litigants themselves get to choose the judges who decide their cases. Judges who rarely get picked (because they are incompetent or biased) would not be able to make a living at adjudicating disputes, and would quietly go away. That provides a genuine democratic check on judges that is completely fair and free of political interference. It is also the libertarian way of doing things.

Posted by: Grant Brown | 2009-04-02 1:07:34 AM

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